US Supreme court rules SEC administrative law judges are subject to the appointments clause

2019 ◽  
Vol 20 (1) ◽  
pp. 22-26
Author(s):  
Joshua D. Roth ◽  
Justin J. Santolli
Keyword(s):  
Design Methodology ◽  
The United States ◽  
Administrative Law ◽  
Securities And Exchange Commission ◽  
Content Type ◽  
Us Supreme Court ◽  
Expert Analysis ◽  
Administrative Proceeding ◽  
Administrative Proceedings ◽  
Practical Implications

Purpose The purpose of this paper is to analyze the Supreme Court’s decision in Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (June 21, 2018). Design/methodology/approach The approach of this paper is to discuss the Securities and Exchange Commission’s (“SEC”) use of Administrative Law Judges (“ALJs”), and the litigation challenging the appointment of those ALJs, culminating in the Supreme Court’s decision in Lucia. Findings In Lucia, the Court held that SEC ALJs are “officers of the United States,” and thus subject to the Constitution’s Appointments Clause, which limits the power to appoint “officers” to the President, “Courts of Law” or “Heads of Departments.” Because the ALJ who presided over Lucia’s administrative proceeding was not appointed by the SEC itself, the Court held that the ALJ’s appointment was unconstitutional and ordered the SEC to provide Lucia with a new hearing in front of a new (constitutionally appointed) ALJ. Practical implications The Supreme Court’s decision in Lucia provides defense counsel with new ammunition to challenge SEC administrative proceedings. It will likely have a significant effect on many pending and already-concluded SEC administrative proceedings but also leaves open a number of important questions for further litigation. Originality/value This paper provides expert analysis and guidance from experienced securities litigators.

US Securities and Exchange Commission settles administrative action against fund manager concerning use of fund assets to pay management company expenses

2015 ◽  
Vol 16 (4) ◽  
pp. 55-58
Author(s):  
Amy Ward Pershkow ◽  
Adam D. Kanter
Keyword(s):  
Securities And Exchange Commission ◽  
Fund Manager ◽  
Content Type ◽  
Fund Managers ◽  
Administrative Action ◽  
The Us ◽  
Administrative Proceeding ◽  
Administrative Proceedings ◽  
Taking Action ◽  
Practical Implications

Purpose – To explain a recently settled administrative proceeding that the US Securities and Exchange Commission (SEC) brought against a private fund manager in connection with the use of fund assets to pay for the manager’s operating expenses. Design/methodology/approach – Explains the major takeaways from the settled case, and places them in the context of prior administrative proceedings and public statements from SEC staff. Findings – This case is the latest example of the SEC taking action against a private fund manager related to the improper deduction or allocation of expenses, and related disclosure lapses, and further cases are expected in the future. Practical implications – Private fund managers should examine their practices involving the reimbursement and allocation of expenses and related disclosures to fund investors. Originality/value – Practical guidance and explanation from experienced securities regulatory lawyers.

2020 SEC risk alert provides guidance for private fund advisers

2020 ◽  
Vol 21 (1) ◽  
pp. 49-54
Author(s):  
Kenneth Breen ◽  
Phara Guberman
Keyword(s):  
Best Practices ◽  
Design Methodology ◽  
Conflicts Of Interest ◽  
Securities And Exchange Commission ◽  
Internal Controls ◽  
Content Type ◽  
Policies And Procedures ◽  
Expert Analysis ◽  
Practical Implications ◽  
The U.S

Purpose To analyze the U.S. Securities and Exchange Commission (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) June 2020 Risk Alert, which identified three categories of deficiencies that the SEC regularly finds in its reviews of advisers to private funds, in order to understand its guidance and recommend best practices. Design/methodology/approach The study discusses the categories of deficiencies that the SEC regularly finds in its reviews of private fund advisers, current SEC enforcement trends, and recommendations for disclosures, internal controls, policies and procedures. Findings The SEC will expect private funds to identify and remedy regular deficiencies in three primary categories: gaps in client and investor disclosures regarding conflicts of interest; deficiencies in disclosures related to fees and expenses; and issues with policies and procedures regarding the treatment of material nonpublic information. Practical implications Private fund advisers should expect increased scrutiny during examinations on the identified deficiencies and use this opportunity to be proactive in addressing these issues. Originality/value Expert analysis and guidance from experienced securities enforcement attorneys.

A failure to supervise: the SEC casts a shadow over internal investigations

2019 ◽  
Vol 20 (2) ◽  
pp. 9-12
Author(s):  
John P. Nowak ◽  
Thomas A. Zaccaro ◽  
Katherine K. Solomon
Keyword(s):  
Design Methodology ◽  
The United States ◽  
Securities And Exchange Commission ◽  
Red Flags ◽  
Content Type ◽  
General Terms ◽  
Expert Analysis ◽  
Investment Advisers ◽  
Internal Procedures

Purpose The purpose of this article is to highlight a recent settlement by the United States Securities and Exchange Commission (the “SEC”) in which it alleged that a regulated entity failed to supervise a representative principally because the entity did not establish clear guidance as to how its personnel should investigate red flags of a representative’s potential misconduct (e.g., how to follow up on the red flags and define the scope of any inquiry). Design/methodology/approach This article provides an overview of failure-to-supervise liability for broker-dealers and investment advisers, and highlights key takeaways from the SEC’s recent enforcement resolution that may be applied in establishing compliance procedures relating to internal investigations going forward. Findings The article concludes that the SEC appears to expect regulated entities to implement procedures guiding employees on “how to investigate” suspicious activity. Companies, however, should define such procedures in general terms to allow for flexibility in investigations, which can present unique or unforeseen situations. Internal procedures must also account for and preserve attorney-client privilege and attorney work product protections. Originality/value This article provides expert analysis and practical guidance from experienced lawyers in the Investigations and White Collar Defense and Securities Enforcement practices

FINRA’s disciplinary actions in 2017: increased restitution ordered with minimal changes in number of cases

2018 ◽  
Vol 19 (2) ◽  
pp. 19-23
Author(s):  
Brian Rubin ◽  
Adam Pollet
Keyword(s):  
Money Laundering ◽  
Design Methodology ◽  
Disciplinary Actions ◽  
Financial Industry ◽  
Electronic Communications ◽  
Content Type ◽  
The Past ◽  
Expert Analysis ◽  
Research Analysts ◽  
Practical Implications

Purpose The purpose of this paper is to analyze the Financial Industry Regulatory Authority’s (FINRA) 2017 disciplinary actions, the issues that resulted in the most significant fines and restitution and the emerging enforcement trends from 2017 and beyond. Design/methodology/approach The approach of this paper discusses the disciplinary actions in 2017 and prior years, details the top 2017 enforcement issues measured by total fines assessed, including anti-money laundering, trade reporting, electronic communications, books and records, research analysts and research reports, and explains current enforcement trends, including restitution, suitability cases and technological issues. Findings In 2017, restitution more than doubled from the prior year, resulting in the fourth highest total sanctions (fines combined with restitution and disgorgement) assessed by FINRA over the past 10 years. Practical implications Firms and their representatives should heed the trends in both the substantial restitution FINRA is ordering and the related enforcement issues in the cases FINRA has brought. Originality/value This paper provides expert analysis and guidance from experienced securities enforcement lawyers.

Policing in the COVID-19 pandemic: are rural police organizations immune?

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Thomas J. Mrozla
Keyword(s):  
Design Methodology ◽  
The United States ◽  
Content Type ◽  
Public Health Emergencies ◽  
Police Organizations ◽  
Police Agencies ◽  
Health Tracking ◽  
Rural Police ◽  
Using Data ◽  
Practical Implications

PurposeThis study examined how rural police agencies have responded to the COVID-19 pandemic.Design/methodology/approachUsing data from various sources, this study first analyzed what factors influenced agency preparedness to respond to pandemics. Second, it examined how the pandemic influenced specific organizational practices.FindingsFindings revealed that as coronavirus infections increased in counties, supervisors were more likely be tasked with inspecting personal protective equipment (PPE), agencies were more likely to offer pandemic related training, health tracking of officers was more likely to occur and agencies were more likely to encounter a shortage of officers. In addition, as rurality increased, agencies were more likely to offer training but less likely to experience officers contracting COVID-19 and an officer shortage. Lastly, as the rurality of the county in which the agency resides increased, the ability to supply PPE decreased.Practical implicationsBased on these findings, it is imperative that rural police agencies give attention to risk management and the formulation of policy to prepare for public health emergencies.Originality/valueWhile knowledge about how large police agencies in the United States have responded during the coronavirus pandemic is building, little is known about rural policing during pandemics.

SEC reporting obligations for insiders and large traders under Section 13 and Section 16 of the Exchange Act

2019 ◽  
Vol 20 (3) ◽  
pp. 39-53
Author(s):  
Arthur L. Zwickel ◽  
Keith D. Pisani ◽  
Alicia M. Harrison
Keyword(s):  
Design Methodology ◽  
Securities And Exchange Commission ◽  
Individual Investors ◽  
Content Type ◽  
Disclosure Requirements ◽  
Beneficial Ownership ◽  
Expert Analysis ◽  
Investment Advisers ◽  
Trading Restrictions ◽  
A Current

Purpose The purpose of this paper is to provide investment advisers, broker dealers, individual investors and other securities firms with a current and detailed summary of the reporting regime under Sections 13 and 16 of the Securities Exchange Act of 1934 (the “Exchange Act”) and guidance on how to comply with the disclosure requirements of the U.S. Securities and Exchange Commission (the “SEC”) on Schedule 13D, Schedule 13G, Form 13F, Form 13H and Forms 3, 4 and 5. Design/methodology/approach The approach of this paper discusses the transactions or beneficial ownership interests in securities that trigger a reporting requirement under Section 13 and/or Section 16 of the Exchange Act, identifies the person or persons that have the obligation to file reports with the SEC, details the information required to be disclosed in the publicly available reports, and explains certain trading restrictions imposed on reporting persons as well as the potential adverse consequences of filing late or failing to make the requisite disclosures to the SEC. Findings The SEC continues to provide updated guidance on the disclosure requirements under Sections 13 and 16 of the Exchange Act, which individual investors and securities firms – largely insiders – must take into account when filing any new or amended reports on Schedule 13D, Schedule 13G, Form 13F, Form 13H and Forms 3, 4 and 5. Originality/value This article provides expert analysis and guidance from experienced securities lawyers.

Virtual currency in sanctioned jurisdictions: stepping outside of SWIFT

2019 ◽  
Vol 20 (2) ◽  
pp. 39-44 ◽  
Author(s):  
Katherine Kirkpatrick ◽  
Christine Savage ◽  
Russell Johnston ◽  
Matthew Hanson
Keyword(s):  
Best Practices ◽  
Design Methodology ◽  
Virtual Currency ◽  
Content Type ◽  
The Us ◽  
Expert Analysis ◽  
Practical Implications ◽  
Foreign Assets

Purpose To understand and analyze sanctions evasion and enforcement via virtual currencies. Design/methodology/approach Discusses various jurisdictions’ attempts to further the use of virtual currency to facilitate and maximize access to international funds; analyzes the aspects that make virtual currency uniquely suited to evade sanctions; suggests best practices for industry participants to be sure to account for the differences in crypto asset structure and related risks. Findings The US Treasury Department’s Office of Foreign Assets Control (OFAC) has explicitly stated that despite virtual currency’s anonymity, industry participants are still responsible for policing and enforcing client compliance. Although sanctioned jurisdictions are thinking creatively about ways around SWIFT, the use of virtual currency to skirt sanctions presents certain challenges. Practical implications Virtual currency industry participants should understand OFAC’s specific guidance regarding compliance obligations in the cryptocurrency space, and should implement best practices and conservative measures to avoid unknowingly running afoul of sanctions laws. Originality/value Expert analysis and guidance from experienced investigations and sanctions lawyers.

SEC credits self-reporting and cooperation in not imposing penalty on ICO sponsor

2019 ◽  
Vol 20 (2) ◽  
pp. 13-15
Author(s):  
Daniel Hawke
Keyword(s):  
Design Methodology ◽  
Securities And Exchange Commission ◽  
Self Report ◽  
Content Type ◽  
Enforcement Action ◽  
Expert Analysis ◽  
Securities Laws ◽  
Insight Into ◽  
Civil Penalty ◽  
Do So

Purpose To explain a February 20, 2019 US Securities and Exchange Commission (SEC) settled enforcement action against Gladius Network LLC for failing to register an initial coin offering (ICO) under the federal securities laws, in which Gladius was able to avoid a civil penalty by self-reporting the violation and cooperating with the SEC enforcement staff. Design/methodology/approach Explains Gladius’ self-reporting, cooperation and remedial steps; why the SEC imposed no civil penalty on Gladius; and two similar cases the SEC instituted in July 2018 against companies that conducted unregistered ICOs, did not self-report, and were penalized. Provides analysis and conclusions. Findings The Gladius case offers important insight into how the SEC and its staff think about cooperation credit in resolving SEC enforcement actions and sends a clear message that self-reporting to the SEC can result in meaningful cooperation credit. In three recent cases, the Commission has made clear that once it put the industry on notice that ICOs could be securities that must be registered under the federal securities laws, a party risks enforcement action by failing to do so. Originality/value Expert analysis and guidance from an experienced securities lawyer who counsels clients on all manner of SEC enforcement, examination and regulatory policy matters.

Parties push to enforce statutory time limits on SEC enforcement actions

2015 ◽  
Vol 16 (3) ◽  
pp. 30-32
Author(s):  
Benjamin Neaderland ◽  
Jared Cohen
Keyword(s):  
Design Methodology ◽  
District Of Columbia ◽  
Securities And Exchange Commission ◽  
Courts Of Appeals ◽  
Content Type ◽  
Time Limits ◽  
Court Of Appeals ◽  
Securities Law ◽  
The Us ◽  
Practical Implications

Purpose – To alert companies and individuals subject to regulation and investigation by the US Securities and Exchange Commission (SEC) of potential arguments to enforce time limits on enforcement actions that have heretofore commonly been ignored. Design/methodology/approach – Analyzes two cases - one recently decided and one pending - in US Courts of Appeals, explains significance of issues at stake. Findings – The Courts of Appeals for District of Columbia Circuit has recently reviewed, and the Court of Appeals for the 11th Circuit will soon decide whether statutory timing provisions effectively remove SEC power to bring enforcement actions past their deadlines, at least in some circumstances. Practical implications – Depending on the outcomes of the cases, companies and individuals may gain a new procedural defense or two against SEC enforcement actions. They may also expect the SEC to respond by more actively seeking tolling agreements, and/or being more cautious in issuing Wells notices. Originality/value – Guidance based on pending decisions interpreting US securities law, may bring regulatory adjustments to agency practice and procedure.

SEC publishes final rules amending the rules of practice for administrative proceedings

2016 ◽  
Vol 17 (4) ◽  
pp. 54-60
Author(s):  
Joan McKown ◽  
Henry Klehm III ◽  
Harold Gordon ◽  
David Woodcock ◽  
Daniel Bradley
Keyword(s):  
Financial Services ◽  
Content Type ◽  
The Us ◽  
Administrative Proceeding ◽  
Affirmative Defenses ◽  
Administrative Proceedings ◽  
The Right ◽  
Hearsay Evidence ◽  
Practical Impact ◽  
Practical Implications

Purpose To explain and evaluate amendments to the rules of practice governing the US Securities and Exchange Commission’s (SEC’s) Administrative Proceedings that were adopted by the Commission on July 13, 2016. Design/methodology/approach Describes SEC’s increased pursuit of enforcement actions in APs, criticisms of the AP process, and corrective legislation. Describes the July 2016 amendments covering expansion of the prehearing period, allowance of depositions, timing for completion of document production in discovery phase, required disclosure of affirmative defenses, permitted dispositive motions, and admissibility of hearsay evidence. Assesses the practical impact of the amendments. Makes recommendations concerning advanced preparation for APs, depositions and witness-interview strategies, particular care concerning statements in Wells submission, availability of investigative record to defense counsel, admissibility of hearsay evidence, and defenses based on reliance on counsel. Findings The amended rules are a step in the right direction but do not fully correct the numerous and severe imbalances that exist in the Commission’s administrative enforcement process with respect to the availability of various discovery mechanisms, the timeline for trying a case, and more. Practical implications Every entity or individual that is involved in an SEC enforcement investigation, or that may become a respondent in an SEC Administrative Proceeding, should take certain practical steps such as those recommended in this article to minimize the structural disadvantages it will face and to maximize the benefits conferred by these latest amendments to the rules of practice. Originality/value Practical background and guidance from experienced enforcement, litigation, securities and financial services lawyers.

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